-1- DBCivil Special Appeal No.864/2012 In SBCivil Writ Petition No.5477/2012 Hussain & Ors.v.Board of Revenue & ORS.Date of Order :: 1st November, 2012 HON'BLE MR.JUSTICE GOVIND MATHUR HON'BLE MR.JUSTICE R.S.CHAUHAN Mr.T.S.Champawat, for the appellants...This appeal is directed against the order dated 25.7.2012 passed by learned Single Judge in SBCivil Writ Petition No.5477/2012.
By the order impugned the writ petition preferred by the petitioner appellants, giving challenge to the orders dated 28.8.2003 and 24.1.2012 passed by the Board of Revenue, Rajasthan, Ajmer in appeal No.290/1998 and in Review Petition No.4478/2003 respectively, came to be rejected.
The facts necessary to be noticed for adjudication of this appeal are that one Shri Basaya was holding agriculture land comprising KhaSr.Nos.282, 308 and 457 in village Shedwa, Tehsil Chohtan, District Barmer.
Shri Basaya in his lifetime partitioned the land aforesaid amongst his three sons viz.
Arab, Sumar and Gafoor.
The land bearing KhaSr.Nos.308 and 457 was under the share of Gafoor, whereas the land bearing KhaSr.No.282 fell in the -2- share of Sumar and Arab jointly.
Shri Sumar died unmarried and after his death the entire land under KhaSr.No.282 was mutated in the name of Arab.
The descendants of Gafoor (respondents Nos.6 to
12) preferred a suit for declaration, revision of holding and permanent injunction as per provisions of Sections 91, 88, 188 and 53 of the Rajasthan Tenancy Act against the petitioners who are descendants of Arab.
The petitioner defendants claimed a declaration for khatedari rights for ½ share of deceased Sumar in the land bearing KhaSr.No.282.
As per the plaintiffs, Shri Sumar died unmarried in Samvat 2023 while residing with Gafoor and he had given his entire share in the land to the respondent plaintiffs and they are in continuous possession thereon, but after death of Sumar the land was mutated in the name of Arab.
The suit was contested by filing a written statement.
As per the defendants their ancestor Arab was in cultivatory possession of the land in question since settlement operation and Arab died long back.
The mutation was also effected in favour of the defendants after death of Arab, as such by adveRs.possession they are having all khatedari rights over the land and no decree as prayed for could be issued.
The trial court on adjudication of the suit arrived at the conclusion that Sumar died issue-less, therefore, the descendants of Gafoor and Arab are entitled for equal share in the land comprising KhaSr.No.282.
The suit was accordingly decreed in the terms that the petitioner defendants shall be entitled for ¾ part share -3- and the respondents plaintiffs shall be entitled for ¼ part share in the land comprising KhaSr.No.282.
A permanent injunction was also granted in favour of the plaintiffs to the extent of their ¼ part of share.
The defendants being aggrieved by the judgment and decree passed by the trial court preferred an appeal before the Revenue Appellate Authority, that came to be dismissed on 15.10.1998.
The second appeal preferred before the Board of Revenue also came to be rejected on 28.8.2003.
A review petition then filed was also dismissed on 24.1.2012.
The writ petition preferred by the defendants also came to be rejected, hence this special appeal is before us.
The submission of counsel for the appellants is that the trial court failed to take care that the parties to the suit being Muslim, the entire case should have been considered as per the personal law applicable.
It is asserted that as per Sections 39 and 40 of the Rajasthan Tenancy Act the succession of khatedar tenant was to be decided as per the personal law applicable to the tenant.
We do not find any merit in the argument advanced looking to the fact that the appellant defendants claimed khatedari rights over the land falling in the share of deceased Sumar on basis of their adveRs.possession and that was not proved.
Learned trial court after due consideration arrived at the conclusion that Sumar was survived by his two brothers Arab and Gafoor, therefore, equal share was given to the parties.
As such, the decree passed does not suffer from any wrong.
The concurrent findings given by the three courts below, thus, are not -4- having any such error, that may warrant interference of this Court.
Accordingly, the special appeal is dismissed.